New South Wales Court of Criminal Appeal CITATION: R v DOYLE [2006] NSWCCA 118 HEARING DATE(S): 27 February 2006 JUDGMENT DATE: 13 April 2006 JUDGMENT OF: McClellan CJ at CL at 1; Rothman J at 7; Smart AJ at 43 DECISION: (A) Appeal be allowed; (B) The sentenced imposed by Phegan DCJ on 14 September 2005 be quashed and in lieu thereof the following sentence be imposed: (i) imprisonment for a non-parole period of 18 months commencing 14 September 2005 and expiring on 13 March 2007 with the balance of the term of a further 18 months to expire on 13 September 2008; (ii) The prisoner shall be released to parole on 13 March 2007 on the usual conditions relating thereto; (iii) The prisoner is disqualified from driving a motor vehicle for a period of three years commencing 18 September 2004 and expiring on 17 September 2007. CATCHWORDS: Criminal Law - sentence - Crown appeal - aggravated dangerous driving occasioning grievous bodily harm - aggravation high range PCA - relevance of depression or reason for consumption of alcohol - custodial sentence required LEGISLATION CITED: Crimes Act 1900 R v Way (2004) 60 NSWLR 168 R v Pitt [2005] NSWCCA 304 R v Engert 1995) 84 A Crim R 67 R v AN [2005] NSWCCA 239 R v Letteri, NSWCCA, unreported, 18 March 1992 CASES CITED: R v Wall [2002] NSWCCA 42 R v Prasad (2004) 147 A Crim R 385 R v Abboud [2005] NSWCCA 251 R v AA [2006] NSWCCA 55 R v Whyte (2002) 55 NSWLR 252 Application by Attorney General re HIgh Range PCA (2004) 61 NSWLR 305 Douglass v R [2001] NSWCCA 250 PARTIES: A: The Crown R: Anthony David DOYLE FILE NUMBER(S): CCA 2005/1952 COUNSEL: A: P G Ingram R: Graham Turnbull SOLICITORS: A: S Kavanagh R: Campbell Paton & Taylor LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/61/0091 LOWER COURT JUDICIAL OFFICER: Phegan DCJ - 1 - IN THE COURT OF CRIMINAL APPEAL 2005/1952 McCLELLAN CJ at CL ROTHMAN J SMART AJ 13 April 2006 REGINA v Anthony David DOYLE Judgment 1 McCLELLAN CJ at CL: I have had the benefit of reading the reasons for judgment of Rothman J in draft. I agree that error has occurred and the respondent must be sentenced to a period of full time custody. I also agree with the sentence proposed by Rothman J. 2 As Rothman J identifies the respondent was charged with having a blood alcohol reading of 0.205 grams per hundred millilitres of blood, although it may have been higher at the time of the accident. His Honour found that as a consequence at the time of the accident he was in a "state approaching unconsciousness …" and "had no idea what was happening… " 3 Whatever may have been his personal circumstances, and it is apparent that he had experienced a number of significant difficulties the respondent must have been aware that he was, at the time he commenced to drive, affected by alcohol to a considerable degree and his driving was a danger to himself, his passengers and other road users. His psychiatric problems provide no excuse for his driving in what was obviously a highly intoxicated state and provide no reason to ameliorate the need to punish the respondent and deter others from the same conduct. 4 The respondent's conduct displayed a high level of moral culpability and in all the circumstances, and notwithstanding the respondent's psychiatric problems, a custodial sentence was required. 5 Almost everyday tragedies occur on our roads. Some are truly accidents, but, in many the taking of drugs or alcohol by the driver is a significant factor. Everyone in the community must understand that if, whilst driving in these circumstances, grievous harm is caused to others a custodial sentence will normally be imposed. 6 In my opinion, as this is a Crown appeal, the sentence proposed by Rothman J, commencing on 14 September 2005, is appropriate. 7 ROTHMAN J: The Crown appeals the sentence imposed on 14 September 2005, by Phegan DCJ, on Anthony David Doyle, who pleaded guilty to aggravated dangerous driving occasioning grievous bodily harm. The aggravation referred to in the offence was that the respondent had a blood alcohol reading of 0.205. The maximum penalty for this offence, a contravention of s.52A(4) of the Crimes Act 1900, is 11 years' imprisonment and the respondent was sentenced to a fixed term imprisonment of two years, suspended for a period of two years upon entering into a bond, and was disqualified from driving for two years. Facts 8 On 2 July 2004 the respondent drove his car into another causing grievous bodily harm to Dominic Rudd. As earlier stated, the alcohol concentration with which the respondent was charged was 0.205 grams per hundred millilitres of blood, but his Honour, in fact, found that at the time of the accident, his blood alcohol reading would have been between 0.224 and 0.253 grams of alcohol per hundred millilitres, the respondent having consumed half of a 700ml bottle of vodka in the period immediately before commencing to drive. 9 His Honour's findings of the effect of the alcohol on the respondent was that he was in a "state approaching unconsciousness …" and "had no idea of what was happening…". The car driven by the respondent went onto the wrong side of the road and caused the accident. There were a number of people in the other vehicle, all of whom, bar one, suffered some injury. The injuries to some were minor, being cuts to the forehead and bruising and increasing in seriousness to the most seriously injured who was Dominic Rudd. Dominic suffered a ruptured spleen and was hospitalised for some 12 days while the injury was treated. The injury was potentially life threatening but was successfully treated and surgery was unnecessary. Dominic was one of the three siblings of the driver of the other vehicle in which their father was also a passenger. 10 The respondent's personal history is, so far as relevant, that he was trained as a teacher and worked as a primary school teacher in Mount Druitt and the Blue Mountains for some years. During part of that time he was a teacher of developmentally disabled children and children with behavioural difficulties. He married in 1985 and the newly married couple moved to Orange where the respondent taught at a number of local schools, both primary and secondary. His teaching of developmentally disabled children developed in him an interest in developmental disabilities generally and he commenced work with the Department of Aging Disability and Home Care as a residential care worker with developmentally disabled persons who require 24-hour care. 11 The respondent has a history of depression and alcohol abuse. Much reliance was placed by the respondent, during the course of submissions, on the nature of the depression said to be suffered and, in that regard, reliance was placed upon the report of Dr Christopher Lennings and other material. Dr Lennings reports the information conveyed to him by the respondent and comments on it in the following way: "He reports some self-harm ideation but denies any active self-harm attempts. He tells me he first became aware of his mood disorder about 10 years ago. He tells me he lacked insight into it and it was not until his wife pointed out to him that he was depressed and advised he should see someone. However, he says he did not seek a consultation with anyone until 1997 when he was diagnosed with Depression. It was only last year (2004) he was diagnosed with Bi-Polar disorder. He says he was given that diagnosis by Dr Whitmill, although Dr Whitmill's letter implies the diagnosis was one that he obtained from elsewhere. Mr Doyle says that a visiting psychologist, Mr Nathan Fleisch also diagnosed him with mild bi-polar condition. There seems to be some debate as to whether he has genuine bi-polar disorder or whether he suffers from depression which cycles into a hypermanic state. (The difference is that in a hypermanic state a person may have elevated mood, impulsive behaviour and some grandiosity but essentially remains reality oriented whilst in true mania, the person's grandiosity is so inflated that they lose touch with reality) … Mr Doyle presents as an intelligent man who from middle adolescence onwards has suffered from the moderately severe mood disorder. Although the major manifestation has been depression, it appears he experiences a cyclothymic disorder in which depression rapidly (usually within a day or two) cycles into mania or hypermanic states. He can remain moderately depressed for some time before the cycling takes place. It seems his depression has been long standing, but is responding well to recent changes in his medication. Currently he does not present with either depression or hypermania and whilst appropriately anxious, does not present as having any significant, current mental health problems. He also reports quite a severe problem with alcohol abuse, and has had repeated treatment attempts for this, including detoxification, Alcoholics Anonymous meetings and more recently, dedicated psychotherapy. He appears to have responded quite well over the last few months to his treatment. Indeed it seems he has suffered from both a mood disorder and a substance abuse disorder and each has probably contributed to the effects of the other." The Remarks on Sentence and Errors (if any) 12 This report of Dr Christopher Lennings was written on 15 July 2005 and was available to the sentencing judge. So too were the reports of a drug and alcohol specialist, Melissa Romeo, a Clinical Nurse Specialist Community Mental Health, John Crossman, and three pages of clinical notes from Dr Fleisch who noted the change in the respondent's medication from Zoloft (100mg) to Epilim (200mg twice daily). 13 Because the intoxication was the factor which led to the aggravation and, therefore, the offence charged, the sentencing judge spent some time on the reasons for the consuming of alcohol and the culpability of the respondent in relation to it. 14 The sentencing judge referred to the accident and made the following findings: "There is no doubt whatsoever that the intoxicated state of the offender was the immediate cause of the accident. He had, it would seem, from the very limited evidence available, essentially lost control of the vehicle and indeed was probably in a state approaching unconsciousness in the sense that he had no recollection, which could only mean either a lapse of consciousness or some degree of post traumatic amnesia. It is likely that, given the circumstances of the accident, immediately before the collision, the offender had no idea of what was happening and that was a result of the consumption of alcohol over the period before he left home. However, a difficulty in this case is raised by the fact that the resort to alcohol itself was in the circumstances which I have described already, which included his state of depression and his psychiatric condition. The recourse to alcohol was a means of relieving some of the more serious symptoms. It is relevant that in June he had self-admitted to a detoxification program and the evidence is that on release from that program that he did remain free of any abuse of alcohol up to the date of the accident." 15 The material before the sentencing judge did not prove, even on the balance of probabilities, that the respondent suffered a psychiatric condition. There was no doubt that he was being treated for depression but he is described by those that treated him, largely after the accident, as having been self-referred. He was treated with anti-depressant medication and had been warned, and was aware, that it was essential that alcohol not be consumed while those drugs were being administered. Notwithstanding that warning, the respondent deliberately embarked on what he knew beforehand was to be a significant binge of alcohol consumption. The difficulty that his Honour faced was described in his remarks on sentencing in the following way: "The difficulty in assessing those events is one which was very clearly identified by the Crown. First of all the offender is a demonstrably intelligent, resourceful and self sufficient person. He had, over all of the years of alcohol abuse, over all of the years of quite acute periods of depression, still managed to lead what can only be described as an apparently normal life, certainly to those outside his immediate family. He had at all times remained in employment and not only remained in employment, but on the testimonials which I have in evidence before me (Exhibit 2) a highly valued employee and colleague. He had continued at least materially to support his family, although clearly the impact of his depression and his resort to alcohol was having a corrosive effect on his relationship with his wife." 16 While there is abundant evidence to suggest that the respondent embarked upon his drinking binge for the purpose of "self-medicating", it is also clear that he did so knowingly and deliberately contrary to the medical advice he had received. Further, there is no evidence that demonstrates an inability on the part of the respondent to understand the consequences of his conduct and no evidence that diminishes his culpability in embarking on a course of conduct, which included the excessive consumption of alcohol, driving and the commission of this offence. 17 His Honour Phegan DCJ cited a passage from R v Way (2004) 60 NSWLR 168 at [86]. I reiterate those comments: "[86] Some of the relevant circumstances which can be said 'objectively' to affect the 'seriousness' of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example, duress, provocation, robbery to feed a drug addition), mental state (for example, intention is more serious than recklessness) and mental illness or intellectual disability where that is causally related to the commission of the offence in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected; Channon v The Queen (1978) 33 FLR 433 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not really circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence." 18 His Honour proceeds, purportedly in reliance on Way, to say: "The condition of the offender at the time of the commission of this offence was, in my view, a condition relevant to both culpability and to what might be described as the more subjective circumstances." 19 His Honour considered that the condition of the offender, which I take to mean his depression, was relevant to culpability. However, his depression was not causally related to the commission of the offence. It was not his depression which affected the respondent's "capacity to reason or to appreciate fully the rightness or wrongness of a particular act or to exercise appropriate powers of control". That capacity was affected solely by the alcohol. Nor can it even be said that the consumption of alcohol, to the extent evidenced here, was done in circumstances where the respondent had a diminished "capacity to reason or to appreciate fully the rightness or wrongness of a particular act or to exercise appropriate powers of control" even if those aspects were confined to the consumption of alcohol itself. 20 The respondent knew, until he was too drunk, precisely what he was doing, appreciated fully the rightness or wrongness of both driving under the influence of alcohol and consuming alcohol and, had he chosen so to do, could have exercised the appropriate powers of control. He chose, deliberately, to embark upon the course that he did, knowing that the effect of the alcohol would be increased because of the drugs he was taking and that the consumption of the alcohol and drugs, as a mixture, could well result in a hypermanic state which could affect his judgment. Even so, there is no evidence that his judgment was affected (other than by alcohol) or that he did not realise that, being drunk, he ought not to drive his motorcar. 21 His Honour referred to the principle in R v Pitt [2005] NSWCCA 304 which in turn reiterates the principle in Engert, supra, and others. The principles are summarised by Howie J in R v AN [2005] NSWCCA 239. AN also deals with a situation where there is a combination of youth and mental disorder. It suffices, for my purposes, to confirm the approach that in cases where a person is suffering from a mental disorder or severe intellectual handicap, general deterrence is a less relevant consideration than is otherwise the case. (See particularly R v Letteri, NSWCCA, unreported, 18 March 1992). In each case, however, it is a matter of balancing the relevant factors in a manner no different from what is involved in every sentencing exercise (R v Engert (1994) 84 A Crim R 67 per Gleeson CJ). The reliance upon these principles by Phegan DCJ must depend upon a finding, at least on the balance of probabilities, that the respondent was suffering a "mental disorder" which affected his capacity to reason and appreciate or control. There was no evidence which could have satisfied his Honour in that regard. Sentence and Principles on Crown Appeal 22 The principles to be applied in a Crown appeal have been stated on a number of occasions and do not bear repeating. (See R v Wall [2002] NSWCCA 42; R v Prasad (2004) 147 A Crim R 385 at [27]; R v Abboud [2005] NSWCCA 251 at [20] – [23]; R v AA [2006] NSWCCA 55 at [27] – [29]) Relevantly, for the purposes of application of principle to this case, it is necessary to apply the principles of appellate review against the exercise of discretion and not merely substitute my own opinion for that of the sentencing judge. This means the application of long standing principles, that there must be an error of law or principle, or, in the case of a Crown appeal, manifest inadequacy in the sentence imposed. Further, the Court has and exercises a residual discretion, especially having regard to the principles of double jeopardy, to refuse to intervene even if error has been shown. If, notwithstanding the above, the Crown appeal is successful and a different sentence imposed by the Court on appeal, it will generally be less than that which should have been imposed by the sentencing court and be at the lower end of the available range of sentences. Errors in Sentencing (if any) and Re-sentencing 23 The sentence imposed by his Honour Phegan DCJ is set in the context of two guideline judgments, which must serve as guideposts (or a framework or benchmark) for the sentencing judge. Nevertheless, the act of sentencing is necessarily a highly discretionary exercise and no two offenders are identical. The two guideline judgments to which I refer are, in relation to dangerous driving occasioning grievous bodily harm, R v Whyte (2002) 55 NSWLR 252, and in relation to high range PCA, the Application by the Attorney General under s.37 for a guideline judgment regarding high ranged prescribed concentration of alcohol (2004) 61 NSWLR 305. 24 The Court, in R v Whyte, sets out what it considers to be a "typical case". That typical case includes the circumstances that the accused is a young offender; of good character with no or limited prior convictions; the incident has caused the death or permanent injury to only one person; the victim is a stranger; there is no or limited injury to the driver or driver's intimates; there is genuine remorse; and there is a plea of guilty of limited utilitarian value. The Court of Criminal Appeal, in R v Whyte, said, of the typical case, that: "A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment." (per Spigelman CJ at [214] with whom Mason P, Barr, Bell and McClellan JJ agreed) 25 The guideline judgment sets out a number of aggravating factors some of which are relevant to the current circumstances and at least one of which, while relevant, is incapable of being used as an aggravating factor. In this case, the extended nature of the injuries inflicted was, fortunately, not as great as it could have been and not as great as the general run of cases. A significant number of people were put at risk, not only the five passengers in the other car, but drivers of other vehicles in and around the offender at the time. The driver was driving erratically and the journey was not a short one. I do not consider, in the circumstances of this case, that the degree of intoxication and/or substance abuse is an aggravating factor because it is the basis upon which the aggravated version of the offence is charged and that factor may not be double counted. The legislature has fixed a 60 percent greater penalty for the aggravated version which occasions grievous bodily harm and, where death is occasioned, the aggravated version of the offence has a 40 percent greater penalty than without aggravation. 26 The guideline judgment sets a benchmark in the following terms: "[229] The guideline for offences against s.52A(1) and s.52A(3) of the Crimes Act 1900 , for the typical case identified above should be: 'Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate.' [230] In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate. [231] In the case of the aggravated version of each offence under s.52A of the Crimes Act 1900 , an appropriate increment to reflect the higher maximum penalty than what would generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment." 27 I have earlier stated that the respondent, unlike the "typical case" is not a young offender. When sentencing young offenders, a greater role is usually given to the most appropriate means of effecting rehabilitation rather than general deterrence. 28 Further, as already stated, the guideline judgment makes clear that a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability. 29 The offender in question was not charged with or convicted of the offence of having a high range prescribed concentration of alcohol. Nevertheless, the circumstances of the offender's aggravation are that he had a high range PCA at the time of the offence. A high range PCA would not usually be charged in circumstances such as this, amongst other reasons, because of the injury that was occasioned by the incident. In the Application by the Attorney General under s.37 of the Crimes (Sentencing Procedure) Act (2004) 61 NSWLR 305, his Honour Justice Howie (with whom Spigelman CJ, Wood CJ at CL, Grove and Dunford JJ agreed) made it clear that, where there are a number of aggravating factors to a significant degree, or where any prior offence is of a high range PCA, a sentence of less severity than full-time imprisonment would generally be inappropriate. It is appropriate, in dealing with the sentence imposed by Phegan DCJ, to look at the usual sentence range for high range PCA in order to gauge the relative adequacy of the sentence imposed. It is also relevant in examining some of the reasons for the offence and any alleged mitigating factors in the commission of the offence. As the Court said: "[142] Generally speaking, the reason for the consumption of alcohol will be irrelevant. The offence is not concerned with punishing the drinking of alcohol, but the driving thereafter. Therefore, it is of no significance that the alcohol was consumed at a wake or a celebration, or because the person was abusing alcohol either generally or on the particular occasion because of some emotional or psychiatric condition." ( Application by the Attorney General 61 NSWLR 305 at [142]) 30 There is little or no logic in treating the reason for the consumption of alcohol as irrelevant in a high range PCA offence, but relevant when considering aggravated dangerous driving occasioning grievous bodily harm where the aggravation is a high range PCA. That alcohol was abused because of a psychiatric condition is irrelevant to a high range PCA and it is irrelevant to an aggravated dangerous driving occasioning grievous bodily harm where alcohol consumption is the aggravating factor. The irrelevance of a psychiatric condition is not by reason of any lack of understanding of the condition, but stems from the proposition, earlier stated, that even if the drinking is understandable, it is the driving while intoxicated that is being punished, and not the drinking itself. 31 The respondent had a number of driving offences which I consider, like the sentencing judge, to be of marginal consideration by way of aggravation. However the respondent was also convicted in April 1999 of a mid-range PCA offence which is an aggravating feature in relation to the offence here in question. Otherwise the respondent had no prior criminal record. 32 His Honour held, in relation to the typical offender described in R v Whyte, supra, that there were a number of features said to be distinguishing. The respondent was not a young offender, a matter to which reference has already been made. There is no criminal history of the respondent, save for the mid-range PCA in April 1999. The injury sustained does not seem to be permanent and some of the persons in the other car were persons taught by the respondent when he was a school teacher and, therefore, not strangers to the appellant. There is also a reference to the respondent's guilty plea and genuine remorse. His Honour considered that the utilitarian value of the plea was "substantial" because the trial would have been lengthy and difficult, although exactly why that is the case does not seem apparent. 33 His Honour also took into account, to the respondent's benefit, the rehabilitation program undertaken prior to the commission of the offence and a lack of likelihood of re-offence. While it is to the credit of the respondent that he admitted himself to a detoxification program in 2004 in order to treat his abuse of alcohol, he engaged in the conduct in question, namely the binge drinking and driving, less than one month after the conclusion of the program. 34 The binge drinking as a means of self-medicating was conduct in which the respondent had engaged in the past but the sentencing judge gave much significance to the fact that it had not occurred in the month since the detoxification program. 35 Largely, the issues associated with the subjective and objective elements of the offender and offence, respectively, turned on the "depressive illness" of which mention has already been made. 36 One other matter needs to be discussed. The sentencing judge paid some regard to the special circumstances of the respondent and, in particular, "the value of keeping the offender in the community" because of the work that he performs. That the respondent performs work as a care worker, on a paid basis, for developmentally disabled persons is a factor that, with a number of others, goes to the subjective situation of the offender. Responsibility towards others in one's occupational life is a two edged sword. On the one hand it shows the otherwise good character and communal responsibility of the offender. On the other hand it shows a person who, more than others, should be aware of the dangers of the conduct and the damage that it can cause. Most persons charged with dangerous driving of this kind, or high range PCA, will have a good character. 37 His Honour compared the current situation with that with which the Court of Criminal Appeal dealt in Douglass v R [2001] NSWCCA 250. The current situation can not be compared with that in Douglass. The Court of Criminal Appeal there suspended a sentence imposed by the trial judge. The conduct there in question caused the offender's passenger, his wife, to become a quadriplegic, which, in turn, required the offender to engage in 24 hour care for her and made the case exceptional. The Court of Criminal Appeal said: "[13] … Although any death or permanent injury to a family member caused by stupidity such as that of the applicant will almost inevitably have repercussions which amount to some punishment of the offender, such consequences cannot, in the ordinary case, be allowed to substitute for that for which Parliament has provided. In this case, the applicant is such that those consequences may fairly be taken into account. The extent to which he has immersed himself in his wife's care provides justification for the observation of counsel for the applicant that, 'The applicant has effectively served some three and a half years' home detention during the time that his wife has been out of hospital since the accident.' " 38 The comparison between the current case and that of Douglass, cited above, is inappropriate. The respondent, in this case, is not effectively serving home detention to care, on a voluntary basis, for the victim. Here there is no death or permanent injury to a family member, the respondent is not required to provide 24 hour care to the victim on a voluntary basis and any activities of the respondent which could be taken into account, would be performed in the future. The fact that an offender, as part of her/his paid employment, cares for the public or performs a public duty may go to the offender's good character, but it is not a substitute for the sentence for which Parliament has provided. Moreover, the comparison with Douglass does not pay sufficient regard to the fact that Douglass was, in the manner in which it treated this issue, exceptional and is not a basis for comparison in similar but not identical circumstances. 39 It is clear from the above that the sentence is manifestly inadequate and pays insufficient regard to the aspects of general deterrence and specific deterrence which were necessary. 40 His Honour also reduced the period of disqualification from driving from the prescribed three years to two years on the basis that: "the substantial inconvenience to which he is currently being put will, in my view, serve as an appropriate reminder of the seriousness of the offence, and the consequences of taking charge of a motor vehicle in circumstances of the kind that preceded this offence." Inconvenience is not an appropriate sentence for an offence of this kind. Moreover, if the rationale of the sentencing judge is accurate in accepting that the depression was the sole or predominant cause of the offence, then no amount of inconvenience will serve to give the respondent an understanding of the consequences of this conduct. 41 While it is clear from the above that I consider the sentence manifestly inadequate and that there is error of principle in the manner in which his Honour has dealt both with the offence and the offender, the depression and attempts at rehabilitation are matters which I take into account in determining that there are special circumstances which warrant a departure from the statutory ratio between non-parole period and the balance of the term. 42 I propose that the Court make the following orders: a Appeal be allowed; b The sentence imposed by Phegan DCJ on 14 September 2005 be quashed and in lieu thereof the following sentence be imposed: i. Imprisonment for a non-parole period of 18 months commencing 14 September 2005 and expiring on 13 March 2007 with the balance of the term of a further 18 months to expire on 13 September 2008; ii. The prisoner shall be released to parole on 13 March 2007 on the usual conditions relating thereto. iii. The prisoner is disqualified from driving a motor vehicle for a period of three years commencing 18 September 2004 and expiring on 17 September 2007. 43 SMART AJ: The Crown appeals against a suspended sentence of 2 years imprisonment (with no non-parole period set) for the offence of aggravated dangerous driving occasioning grievous bodily harm. The offender had a blood alcohol reading of .205. He drove his vehicle onto the wrong side of the road when there was little or no traffic around. He ran into a vehicle travelling on its correct side of the road and containing five members of the one family. Surprisingly, only one member of that family suffered grievous bodily harm. The offence occurred at 9.05pm on 2 July 2004. 44 The judge found that the intoxicated state of the offender was the immediate cause of the accident, that the offender had lost control of the vehicle, was probably in a state of unconsciousness and that it was likely immediately before the collision the offender had no idea of what was happening as a result of the consumption of alcohol over the period before he left home. 45 The judge was troubled by the factors which led to the offender's resort to alcohol including his state of depression and his psychiatric condition. 46 The judge accepted the applicant's evidence that his depression went back to his late teens and that, as the years passed, he succumbed to alcohol abuse as a means of dealing with his depression. The judge held: "Over time and certainly more recently, the depression was interspersed with periods of euphoria or a hyperactivity, but it was not until the mid 1990s that he recognised the seriousness of the problem and at that point it was already having a damaging effect on his marriage. In fact it was only when his wife told him that he was, or appeared to be, suffering from depression, that he finally acquired some insight into his condition." 47 The judge accepted that in 1997 the offender's doctor (local general practitioner) diagnosed the offender was suffering from depression. He was placed on Zoloft, but that drug had adverse side effects. An effective treatment was not found and that position continued for a number of years. The judge held" "The lack of any effective treatment at the time led to an increase in the offender's reliance on alcohol as a means of what was described in some of the reports as 'self medication' in order to relieve his depression which had relatively short term effects but nonetheless sufficient to make them more attractive than the drugs and other medication which had proved to be unsuccessful." 48 The judge found: "[The offender's] behaviour as a consequence of the combination of his bouts of depression and his increasing use of alcohol led to the separation of the parties to the marriage in January 2001 and this only served not surprisingly to exacerbate the state of depression." 49 In late February 2004 the offender's former wife referred him to the Curran Centre run by the Greater Western Area Health Service. On 1 March 2004, and at least in part as a result of his wife's urging, he consulted Dr B Whitmill about his depression. Dr Whitmill records that the offender came with a history of being diagnosed with Bi-Polar Affective Disorder. Dr Whitmill had no note showing that he offender had that disorder in the past. It is not clear who made this diagnosis. The doctor prescribed Epilum to reduce the symptoms of depression and Campral to assist in withdrawing from his alcohol dependence. 50 The offender also attended at the Curran Centre on 1 March 2004 and saw Mr John Crossman, a Clinical Nurse Specialist, Community Mental Health. He continued as the offender's case manager to 4 January 2005. The offender described to Mr Crossman on 1 March 2004, a deterioration in his mental state over the previous four years becoming more intense and changeable in the last twelve months. The offender said he changed from active and happy to bouts of deep lows. 51 Dr Whitmill saw the offender on 22 April 2004 and thought he was improving. On 24 June 2004 Dr Whitmill reviewed the offender. 52 Mr Crossman records: "Tony's moods gradually settled, however periodic depressive episodes, 'overwhelming sadness', as Tony described them, remained a concern. Tony admitted to using alcohol to cope with this. He described such an episode the day of the car accident on 2nd July 2004 when again used alcohol to try and eliminate his distress" 53 The offender admitted himself to the Lyndon Withdrawal Unit on 2 May 2004 and voluntarily discharged on 7 June 2004. The Discharge Summary records, "He completed detox of 7 days. Living Skills of 28 days was not completed." 54 Dr Nathan Fleisch, Psychiatric Registrar, saw the offender on 13 July 2004 and diagnosed Bi-Polar Affective Disorder. Dr Fleisch increased the medication prescribed by Dr Whitmill. 55 Dr Whitmill and Mr Crossman continued to see and treat the offender after the collision of 2 July 2004. 56 Mr Crossman has written that the offender informed him on 8 July 2004 that on the day of the car collision he experienced a sudden and overwhelming feeling of despair descend upon him. Mr Crossman continued: "I cannot say with any certainty that Tony's self medicating on alcohol directly related to him being in a depressive episode of Bi-Polar Affective Disorder, however it is known in the past this is how he has tried to cope with these episodes." 57 Dr Whitmill reported that the offender was "scheduled into Bloomfield in December 2004 when he was voluntarily presented due to depressed mood and thoughts of suicide and consuming large amounts of alcohol and was referred back to drug and alcohol counsellors at that time." Dr Whitmill continued: "Mr Doyle has been with a variety of methods including counselling, psychiatric assessment, drug and alcohol counselling, Epilum for Bi-Polar Affective Disorder and antidepressants for depression … … a large amount of Mr Doyle's problems is when he self medicates with alcohol and the most important thing for him to do would be to avoid and abstain from alcohol in the future." The offender gave evidence of being very depressed in April 2004 and contemplating suicide. 58 The offender gave evidence that on the day of the collision he had a serious bout of depression. He had to leave work. He telephoned a replacement staff member, who took over. The offender left work after an hour and went home. He had abstained from drinking after leaving Lyndon – a period of nearly four weeks. When he got home he drank heavily – at least half a bottle of vodka. His depression became very severe. His former wife came over to his home, having been contacted by members of his family, and they "discussed things and had some coffee and got through it and then my mood then just lifted, it went into that 'over the top' state." 59 The offender said that it was very hard to describe how he was feeling. He gave this evidence: "Q. Are you in control? A. I would say no, not completely in control … its almost very spontaneous, well you do things without considering. Q. … did you think about your drinking when you were elated like that A. No I didn't consider it." 60 The offender said that when he overcame the depressive bout he decided to go to a friend's house to play music in accordance with an earlier arrangement. Spontaneously, he said to himself, 'I am going to play now.' He felt really good. When asked if he had considered what he'd drunk before he got in the car he replied, "I wasn't thinking about anything." 61 The offender stated that he drove on the night of the collision because he had gone through the stages of depression and then just did it. He could not make sense of what he did. 62 The offender said that when he drank to overcome his depression he was usually at home. He did not think that he had some type of control over when he would drink when he was depressed. He stayed at home when he was depressed as he did not want people to see him in that state. 63 The offender agreed that if he was at work and an episode of depression came on he had enough control to wait until he arrived home. He also agreed that it was his choice to drink when he was depressed and that he would have had some control. He agreed that he was taking Epilum on the night of the collision. He knew that he should not drink and take Epilum at the same time. The offender said that at the time he was not thinking rationally and he did not consider the side effects of drinking and taking the medication at the same time on the day of the collision. He had been aware before that day that the medication could interact badly with alcohol. The offender gave this evidence: "Q. Would you say that you, on at least some level, made a decision to get into the car to drive to your friend's place? A. I did decide to go there, yes. … A. I can't say I didn't have a choice but it was very spontaneous that I did." 64 Despite suffering from depression the offender seems to have maintained employment and was regarded as a highly valued employee and colleague. He assisted to support his family materially. He also discharges fatherly duties for his children. The judge found that the offender was a demonstrably intelligent, resourceful and self-sufficient person. To those outside his immediate family he appeared to lead a normal life. 65 The offender was seen by Dr C J Lennings, a well qualified and experienced psychologist, for medico-legal purposes. The offender told Dr Lennings that "the deep depression periods usually only last for a few days but he switches to a hypermanic state in which he feels enthusiastic and energetic and in these states he can resume his employment. He says he is aware that his colleagues regard him as strange at times." 66 Dr Lennings wrote: "There seems some debate as to whether [the offender] has a genuine bi-polar disorder or whether he suffers from depression which cycles into a genuine hypermanic state (… in a hypermanic state a person may have elevated mood impulsive behaviour and some grandiosity but essentially remains reality oriented whilst in true mania the person's grandiosity is so inflated they lose touch with reality)." 67 The offender told Dr Lennings of his alcohol problems and of having sought treatment for them and that for a month prior to the accident he had battled with "waves of depression". Dr Lennings wrote: "On the day of the accident [the offender's] lapse into drinking seems associated with a worsening of his mood state." 68 The offender gave to Dr Lennings substantially the same account of the events in the morning, afternoon and evening of the day of the collision as he gave in evidence. 69 Relying on the history given by the offender and an assessment of him, Dr Lennings thought that the offender had, from middle adolescence suffered from a moderately severe mood disorder. Dr Lennings continued: "Although the major manifestation has been depression, it appears he experiences a cyclothymic disorder in which depression rapidly (usually in a day or two) cycles into manic or hypermanic states. He can remain moderately depressed for some time before the cycling takes place." 70 Dr Lennings, in dealing with the effect of alcohol wrote: "Mr Doyle gives an account of the offence that indicates his use of alcohol was a significant contributing factor. He also gives an account that suggests his use of alcohol was triggered by a sudden worsening of his depression on the day of the offence. It seems he has used alcohol in the past as a mood regulator, to no good effect, and the unfortunate circumstances of the day appear to have unfolded as a function of a time worn path of using alcohol to self-medicate his depression. Although my interview is not sufficient to investigate the hypothesis, I wonder if the alcohol might not trigger the swing to mania (as such would represent an effective form of self-medication from the patient's viewpoint as euphoric is a far more pleasant emotional state than depression). Unfortunately, in a euphoric state a person often fails to consider the consequences of their actions, they feel invulnerable, and leaves them prone to ill-considered and, as seems to have occurred in this case, potentially tragic outcomes." 71 The question raised by Dr Lemmings is an intriguing and difficult one. The materials do not enable it to be answered. 72 The judge regarded this as a troubling and difficult sentencing exercise and so do I. On the one hand the alcohol offered a way of escaping depression which had reached a level of intolerable intensity, after building up often over some days. On the other hand, there was an opportunity for judgment and control which the offender did not exercise. One of the difficulties is determining the significance of that opportunity for a person in the condition of the offender on the day of the collision. 73 The criminality charged lies not in drinking but in driving a car dangerously and also heavily under the influence of alcohol. For many years much emphasis has been placed on the dangers of drink driving. 74 The judge accepted that the offender was intelligent and mature, with years of alcohol abuse behind him. There were obviously times when he was not seriously depressed and not under the influence of alcohol abuse. The judge upheld the Crown submission that it was impossible to accept that on the day of the collision the offender was so overwhelmed by his condition that he, in effect, was not in a position to exercise any judgment about the intended bout of drinking, its effects and driving afterwards. The judge held that in those circumstances the level of culpability was significant. The judge agreed with these Crown submissions: "This was an offender who was more than capable of foreseeing the consequences of consuming excessive alcohol on this occasion or even starting to consume alcohol in circumstances where he knew from past experience it might lead to excess. He was also aware that having placed himself in that position he might fail to exercise appropriate judgment at a later stage. …" 75 The judge thought that by the day of the collision the offender had reached a point where things were literally running out of control. The judge held that the acute state of depression of the offender on that day must be taken into account, but it did not effectively eliminate the element of culpability. That conclusion is correct. 76 The judge paid careful attention to the subjective features of the respondent. He was satisfied that the offender's remorse was genuine and that he was unlikely to re-offend. He acknowledged, correctly, the very favourable references in support of the offender. 77 The judge regarded the utilitarian value of the plea of guilty as quite substantial, as he thought that a not guilty plea may have resulted in a very lengthy and difficult trial. The prosecution evidence as to the dangerous driving and the level of alcoholic abuse was cogent but it would have taken some days to lead, unless shortened by agreement. The judge was probably contemplating extended evidence would be led on the issue whether the offender had a genuine Bi-Polar disorder and had lost touch with reality, or other evidence to the effect that his severe depression was very disabling and deprived him of the ability to think rationally. That would have necessitated a more detailed history from the offender and possibly also from his wife. There would also have had to be more detailed expert evidence to which the Crown might have wished to respond. The expert evidence placed before the judge lay in a small compass. It should not be assumed that this would happen at a trial. Depending on how the trial was conducted and the evidence led, I could envisage a trial taking the best part of two weeks. There could be debate whether the expert evidence went to guilt or sentence. If the evidence called by the offender did not reach the level necessary to bear upon the question of guilt, a trial may be much shorter. The judge's view that there were problems facing the Crown in relation to the selection of the charge cannot be sustained. 78 The judge took an unduly benign view of the value of the plea of guilty. Its utilitarian value was not quite as high as he suggested. The indications were that the expert evidence would not reach the level required to provide an acceptable defence 79 The judge expressed the view that the level of injury once account was taken of the ingredients of the offence, and the prior record of the offender were matters of only marginal, if any, relevance to sentencing in the present case. Grievous bodily harm is an important element of the offence and an important consideration in sentencing. The injury suffered by the 9 year old child was serious and it was fortunate that it responded to, and was resolved by conservative treatment. Two of the traffic offences of the offender, namely that in 1999 of driving with middle range concentration of alcohol, and that in 2003 of exceeding the speed limit by more than 15 kmh, particularly the former, do not assist the offender. I do not think that they can be regarded as of marginal relevance. The traffic offences many years earlier can be disregarded. When the judge spoke of the offender being of good character, he was relying on the absence of any non-traffic offences, no previous major traffic offences, and the good qualities he had as emerged from the many references. 80 What led the judge to suspend the sentence was this combination of factors: (a) the offender was most unlikely to re-offend, had good prospects of rehabilitation and was applying himself to the task of rehabilitation. He had also shown remorse; (b) the offender has rendered sterling service to others; "whether as a school teacher or as a care worker, his overriding commitment has been to assist those most in need of assistance"; (c) he has embarked upon a substantial amount of voluntary work for the benefit of the community; (d) the offence was entirely out of character and was not "the typical case of someone who has a record of reckless disregard of the public in the way that they drive a motor vehicle." The word "typical" is not unimportant; (e) the onset of an acute state of depression drove the offender to drink; "the exceptional circumstances that arose from his condition at that time should be taken into account …"; (f) there was a very real risk that the significant progress which the offender had made to remove from his life the causes of the offence would be set back if he was sentenced to a period of full time custody; and (g) the extremely valuable work which he does as a care worker would be interrupted to the detriment of those acutely in need of such care and his sons would be deprived for his period in custody of his financial support. 81 The judge did not consider the matters mentioned in (f) and (g) as in any way decisive. However, the judge held that they combined with all the other considerations to point to a conclusion that to put the offender in prison for any period of time would be in a number of respects be counter productive. The judge regarded this case as an exceptional one. 82 I would not cavil with the proposition that good care workers are in limited, if not short, supply. The judge was aware of this and was probably aware of the position in Orange. 83 The judge and the parties before us referred to and discussed a number of well-known decisions. I have preferred to focus on the unusual facts of the present case. 84 Essentially, an intelligent man, suffering from severe depression which led to him consuming a high amount of alcohol, drove a vehicle along a country road which was not carrying much traffic, crossed to the wrong side of the road and ran into a vehicle travelling on its correct side of the road in the opposite direction, and carrying five people, and inflicted grievous bodily harm on one of the passengers. It was dangerous driving with the offender having a blood alcohol reading of over 0.2. That is conduct which cannot be tolerated and merits stern punishment. 85 The judge has tended to underestimate the gravity of the offender's culpability and criminality. 86 In sentencing, the good works and good qualities of an offender should be taken into account. It is not uncommon for prospects of treatment to be better in the community than in gaol, but that does not warrant, usually, a non-custodial sentence. 87 The hardships to those needing care and the offender's children fall far short of that which is required to avoid a custodial sentence. 88 The combined matters on which the judge relied are not sufficient to justify not imposing a full time custodial sentence. They do bear upon the length of the sentence which should be imposed. The sentence imposed is manifestly inadequate for the criminality revealed. 89 In re-sentencing I have taken into account the affidavit of 24 February 2006 of the offender. He is still employed as a Residential Care Support Worker on a full time basis. He complies with his doctor's directions "to take medication for my mental health disorders" and has specified what he takes. The offender continues to see the Drug and Alcohol Specialist in Orange Community Health Centre on a regular basis. Her report of 22 February 2006 is encouraging. The offender is committed to his rehabilitation. He needs to live in town on workdays and this has involved added expense. He has also struggled to pay legal fees. He continues to have follow-up interviews through the Shade Programme. His mental health is currently stable. He will be referred back to the mental health worker if necessary. The offender continues to have contact with his children on a regular basis and to pay maintenance for their support. 90 The applicant received his suspended sentence on 14 September 2005. It is now April 2006. A period of 7 months has elapsed. That is a substantial period. It is not suggested that there has been delay on the part of anyone. The offender was served with the Notice of Appeal on 2 October 2005. 91 Notwithstanding the double jeopardy to which the offender has been exposed, the evidence adduced on this appeal which has caused me to pause, and the lapse of time, the Court should still intervene and re-sentence. The offence was serious. Driving of the type in question must be adequately punished. 92 There are special circumstances warranting a longer period on parole. They include the offender's need for rehabilitation and extended supervision. This is his first custodial sentence. 93 Having regard to the lapse of time since sentencing, double jeopardy, this Court's order placing the offender in prison after he had received a suspended sentence, his observance of the terms of the bond attached to the suspended sentence, I agree with the orders proposed by Justice Rothman. The lowest permissible total sentence and non-parole period which could be imposed are respectively three years and 18 months. The dating of the sentences from 14 September 2005 recognises the aspect of double jeopardy and the period which the applicant has served pursuant to the bond and the suspended sentence in complying with the conditions imposed. He has done what was intended. 94 In reducing the period of disqualification from 3 years to 2 years, the judge was influenced by the time and difficulty which the offender experienced in travelling from his home to his place of work in Orange. It took several hours and he often had to walk and hitch hike. I do not regard that as an irrelevant consideration. However, the gravity of the offence is such that that consideration cannot prevail and lead to a reduction in the period of disqualification. Arising out of the offence in question anything less than a disqualification for three years would be inadequate. The judge dated the disqualification from 18 September 2004, being the day on which the police attended the offender's address and suspended his licence. Part of the period of 3 years will be spent in custody. 95 I agree with the orders proposed by Justice Rothman. Although this judgment does entail the applicant serving a custodial sentence, I take the liberty of expressing the view for the possible assistance of future employers that, given the circumstances and nature of the offence, the qualities of the offender and his determined efforts at rehabilitation, this sentence should not be a bar to future employment in the fields of aged and disability care. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.